'Terrorism strikes at the very heart of everything the United Nations stands for. It is a global threat to democracy, the rule of law, human rights and stability, and therefore requires a global response.’
(Secretary-General Kofi Annan, 17 June 2004, SG/ SM/9372).
The terrorist attacks on 11 September 2001 in New York and Washington made the fight against terrorism a top political priority for the international community. On 28 September 2001, the UN Security Council adopted Resolution 1373 under Chapter VII of the UN Charter, calling upon states to implement more effective counter-terrorism measures at the national level and to increase international co-operation in the struggle against terrorism. The Resolution created the Counter-Terrorism Committee (CTC) to monitor actions on this issue and to receive reports from states on measures taken. Following the adoption of Resolution 1373, a substantial number of states have adopted plans for further measures to combat terrorism. Security Council Resolution 1456, adopted in 2003, called on the CTC to consider human rights in its work; yet the Committee has ignored the impact on human rights of its activities in relation to repressive governments that justify human rights violations with reference to antiterrorism measures. Another issue of concern is the way entities or individuals are added to the terrorist list maintained by the Security Council. The absence of review or appeal for those listed raises serious accountability issues and possibly violate fundamental human rights norms and Conventions. The attacks on trains in Madrid in 2004 and the London transport system in 2005 reminded world leaders that terrorism poses a serious threat to the security and the lives and freedom of citizens worldwide. In Resolutions 1530 (2004) and 1611 (2005) the Security Council condemned the attacks and expressed its reinforced determination to combat all forms of terrorism, in accordance with its responsibilities under the UN Charter.
Twelve Conventions have been drafted at the UN level to deal with terrorism; recent ones are the Convention for the Suppression of Terrorist Bombings (1997), the Convention for the Suppression of Financing Terrorism (1999) and the International Convention for the Suppression of Acts of Nuclear Terrorism (2005). These Conventions and others establish that states are under the obligation to take the measures needed to protect the fundamental rights of everyone within their jurisdiction against terrorist acts. Practically all forms of terrorism are covered by these Conventions, in addition to the Geneva Conventions and the Rome Statute of the ICC.
Despite a plethora of instruments addressing terrorism, it has been difficult to reach an international consensus on a definition of terrorism. A clear definition is necessary as without it oppressive governments violate human rights with reference to security; opponents of government policies may be categorised as terrorists in the same way as, for example, some states in the 1970s labelled perceived ‘dissidents’ as communists. In 2003, the UN-Secretary General established the High-Level Panel on Threats, Challenges and Change to generate new ideas about policies and institutions required for the UN to be effective in the 21st century. In its report, the Panel recognised that the ability of the UN to develop a comprehensive strategy has been constrained by the inability to agree on an anti-terrorism Convention, including a definition of terrorism. The Panel recommended (Report, para. 164) that a definition of terrorism should include the following:
(a) Recognition, in the preamble, that State use of force against civilians is regulated by the Geneva Conventions and other instruments, and, if of sufficient scale, constitutes a war crime by the persons concerned or a crime against humanity;
(b) Restatement that acts under the 12 preceding anti-terrorism conventions are terrorism, and a declaration that they are a crime under international law; and restatement that terrorism in time of armed conflict is prohibited by the Geneva Conventions and Protocols;
(c) Reference to the definitions contained in the 1999 International Convention for the Suppression of the Financing of Terrorism and Security Council resolution 1566 (2004);
(d) Description of terrorism as ‘any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva Conventions and Security Council resolution 1566 (2004), that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act’.
The Parliamentary Assembly of the Council of Europe has defined an act of terrorism to be
any offence committed by individuals or groups resorting to violence or threatening to use violence against a country, its institutions, its population in general or specific individuals which, being motivated by separatist aspirations, extremist ideological conceptions, fanaticism or irrational and subjective factors, is intended to create a climate of terror among official authorities, certain individuals or groups in society, or the general public (Recommendation 1426 (1999)).
In 2002, the Council of the European Union adopted the ‘Framework Decision on Terrorism’, containing a detailed definition specifying a terrorist act as:
[A]n act which may seriously damage a country or an international organisation where committed with the aim of: seriously intimidating a population, or unduly compelling a Government or international organisation to perform or abstain from performing any act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.
The definition enumerates nine types of terrorist acts, including: a) certain attacks on life and integrity of persons, b) seizure of aircraft and ships, c) kidnapping or hostage taking, d) causing destruction of government property or infrastructure, e) manufacture of what amounts to weapons of mass destruction and c) interfering with a country’s resources with the effect of endangering human life.
Terrorism thrives in environments of dejection, humiliation, poverty, political oppression, extremism and human rights abuse; it also flourishes in contexts of conflict and foreign occupation; and it profits from weak state capacity. The current ‘war on terrorism’ has in some instances corroded the very values that terrorists target: human rights and the rule of law. The UN High-level Panel raised concern that ‘approaches to terror focusing wholly on military, police and intelligence measures risk undermining efforts to promote good governance and human rights, alienate large parts of the world’s population and thereby weaken the potential for collective action against terrorism’. Preventive measures often amount to complex operations interfering with the privacy and rights of many citizens. Political leaders must be seen to take effective measures and it is therefore not surprising that large-scale operations are mounted in reaction to major attacks. An example of such measures was the creation of the Department of Homeland Security in the United States. In the EU, as a reaction to the Madrid bombings, an EU security co-ordinator was appointed and the so-called solidarity clause whereby states pledge to assist each other in fighting terrorism - including with military means - was invoked (Article 42 of the new Constitution for Europe).
Terrorists often set out to create an atmosphere of extreme uncertainty in which normal decision-making processes become difficult if not impossible and as such interfere with democracy and the rule of law. The Security Council has declared that, under Chapter VII of the UN Charter, states have the duty to protect persons under their jurisdiction from terrorism and to employ to the maximum their legal weapons to repress and prevent terrorist activities. Terrorism, however, must be fought within the framework of the law and with respect for the principle of proportionality and non-discrimination. In the words of Secretary-General Kofi Annan: ‘there is no trade-off between effective action against terrorism and the protection of human rights’. The fight against terrorism implies long-term measures with the aim to preventing the causes of terrorism, by promoting, in particular, cohesion in our societies and a multicultural and inter-religious dialogue. Counter-terrorism must be lawful, respect human rights – i.e., never make use of torture - and be subject to appropriate supervision. The UN Global Counter-Terrorism Strategy, adopted in 2006, reaffirmed the importance of respect for human rights for all, international humanitarian law and the rule of law as the fundamental basis for the fight against terrorism. The UNGA elaborated on this position in Resolution 63/185 (2009).
In 1997, the Sub-Commission on the Promotion and Protection of Human Rights recommended the appointment of a Special Rapporteur to conduct a comprehensive study on human rights and terrorism. The Special Rapporteur submitted a series of reports to the Sub-Commission. In her final 2004 report entitled ‘Specific human rights issues: New priorities, in particular terrorism and counter-terrorism’, she noted that accountability for acts of terrorism - and the need to distinguish between what is terrorism and what is something else, e.g. military operation, other armed conflict, or fighting against colonial domination, alien occupation and racist regimes in the exercise of the right to self-determination - is an issue that needs to be addressed. The report discusses, inter alia, state terrorism, state-sponsored terrorism and the continuing debate over the applicability of human rights norms to non-state actors, extradition, impunity and the question of periodic review of national counter-terrorism measures and their compliance with human rights. In 2004, the UN Commission on Human Rights appointed an Independent Expert on the protection of human rights and fundamental freedoms while countering terrorism and in April 2005, the Commission appointed a Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. The mandate was assumed by the Human Rights Council.
Several other special procedures of the former Commission and the Human Rights Council have drawn attention to the negative impact of numerous measures taken in the context of counter-terrorism efforts. For instance, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment initiated a Joint Study to examine the practice of secret detention from a global perspective with the aim to produce new findings regarding the nature and scope of the practice. In 2003, the special rapporteurs/representatives, experts and chairpersons of working groups of the special procedures of the UN Commission on Human Rights issued a joint statement in which they expressed alarm at,inter alia, the growing threats against human rights and voiced ‘profound concern at the multiplication of policies, legislations and practices increasingly being adopted by many countries in the name of the fight against terrorism, which affect negatively the enjoyment of virtually all human rights - civil, cultural, economic, political and social’. They drew attention to the dangers inherent in the indiscriminate use of the term ‘terrorism’, reiterated the non-derogability of certain rights and deplored the fact that, under the pretext of combating terrorism, human rights defenders are threatened and vulnerable groups are targeted and discriminated against. Finally, they affirmed that any counter-terrorist measures must be in accordance with international human rights law (E/CN.4/2004/4, annex 1). The statement was reiterated in 2004.
As a result of the work of the Special Rapporteur on torture, the OHCHR published in 2003 the ‘Digest of Jurisprudence of the UN and Regional Organisations on the Protection of Human Rights while Countering Terrorism’. The digest clarifies the concept of non-derogable rights under the UN and regional human rights systems and addresses the core principles of necessity and proportionality, which are fundamental to lawful counter-terrorism measures. In 2005 the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, the Special Rapporteur on Torture and the Chairperson-Rapporteur of the Working Group on Arbitrary Detention issued a joint statement expressing their deep regret that that the Government of the United States had still not invited them to visit those persons arrested, detained or tried on grounds of alleged terrorism or other violations in Iraq, Afghanistan or the Guantanamo Bay naval base. The Working Group on Arbitrary Detention has expressed its concern about the transfer practice known as ‘rendition’ or ‘extraordinary rendition’ (E/CN.4/2006/7) and the use of secret prisons or ‘black sites’ as a total disregard for human rights protections (E/CN.4/2006/7). In December 2008, the Special Rapporteurs on Freedom of Expression of the UN, OSCE, OAS and AU issued a joint declaration on defamation of religions and anti-terrorism and anti-extremism legislation. The experts called for a narrow definition of terrorism and of incitement to terrorism, and for anti-terrorism legislation to respect the role of the media.
UN bodies and NGOs have documented extensive human rights abuses perpetrated under the pretext of combating terrorism, inter alia, torture, inhuman and degrading treatment, enforced disappearance, arbitrary detention, racial profiling, breaches of privacy rights and violations of due process rights and effective remedies. Under the treaty-based system, the Human Rights Committee has expressed concerns regarding counter-terrorism measures taken by states, and has reaffirmed in its concluding observations that states parties must ensure that the measures undertaken in order to implement Security Council Resolution 1373 (2001) conform fully with the ICCPR. Moreover, the Committee has exchanged briefings with the Counter-Terrorism Committee on their working methods and areas of concern. The Committee has furthermore decided in individual communications concerning human rights violations perpetrated in the context of the ‘war on terror’. Examples include Yasoda Sharma v. Nepal where the Committee found a violation of the prohibition of torture and cruel, inhuman and degrading treatment, the right not to be subject to arbitrary detention, the right to humane treatment while in detention and the right to an effective remedy due to the enforced disappearance of Surya Prasad Sharma, a member of a political party deemed by the authorities to be a terrorist organisation. In Sayadi and Vinck v. Belgiumthe Committee held that Belgium had violated the rights to freedom of movement and to privacy of the applicants who were subjected to restrictive measures following their insertion in the UN Al-Qaeda and Taliban Terrorism Lists. In Maksudov et al. v. Kyrgyzstan the Committee ruled that Kyrgyzstan was responsible for the arbitrary detention and transfer of four Uzbek citizens to Uzbekistan, where they faced charges of terrorism offences carrying a possible death sentence, in breach of Kyrgyzstan’s obligations under the ICCPR. The Committee held that the applicants faced a substantial risk of being subjected to torture or other ill treatment, that there had been a violation of the right to life and that they had been denied the right to a remedy.
The CERD Committee monitors, inter alia, the potentially discriminatory effects of counterterrorism legislation and the CAT Committee consistently reminds states of the non-derogable nature of the prohibition of torture, reiterating that no exceptional circumstances whatsoever may be invoked as a justification of torture. It established core principles in Agiza v. Sweden where it acknowledged that ‘measures taken to fight terrorism, including denial of safe haven, deriving from binding Security Council Resolutions are both legitimate and important. Their execution, however, must be carried out with full respect to the applicable rules of international law, including the provisions of the Convention, as affirmed repeatedly by the Security Council.’
In 2009 the International Commission of Jurists published ‘Assessing Damage, Urging Action’, the report of its Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights. The Panel conducted a comprehensive survey on counterterrorism and human rights since 2001. It found extensive evidence of grave human rights abuses:
Individuals have been abducted and held in secret prisons, where they have been tortured and ill-treated;
Terrorist suspects are held incommunicado for extended periods before being charged and before they have access to lawyers, courts and the outside world in conditions that are conducive to, and have led to, torture and cruel, inhuman and degrading treatment;
Individuals charged with terrorism are often tried before special or military courts, which lack the requisite guarantees of independence and impartiality, and do not offer essential fair trial guarantees;
Deportation, detention and administrative measures adversely affecting persons suspected of being involved in or supporting terrorism are often ordered on the basis of secret intelligence which is not disclosed to the affected persons;
Broadly framed anti-terrorist legislation has encroached upon fundamental freedoms of speech, opinion and assembly;
Many counter-terrorist measures lack basic safeguards such as due process and adequate oversight mechanisms;
A culture of secrecy is becoming pervasive and, in the case of secret detentions, suspects are being placed beyond the basic protections afforded by human rights standards, international humanitarian law and all domestic constitutional guarantees;
The secrecy demanded for the work of the intelligence and security bodies frequently amounts to impunity for wrong-doing, and innocent victims of human rights violations find themselves with no avenue for redress.
All regional bodies have also exposed both the threat of terrorism as well as the potentially negative impact of anti-terrorist measures on human rights.
The Council of Europe adopted an early instrument on terrorism, the Convention on the Suppression of Terrorism (1977). In the wake of the 2001 terrorist attacks the Council of Europe began to implement a plan of action, which resulted in the adoption of an important set of international instruments. Activities in this field are carried out by the Committee of Experts on Terrorism (CODEXTER) which brings together governmental experts. The Council adopted the ‘Guidelines on human rights and the fight against terrorism’ in 2002, reaffirming the obligation of states to protect everyone against terrorism, lawfully and without arbitrariness, and reiterating the absolute prohibition of torture. They also set out a framework concerning the collection and processing of personal data and measures that interfere with privacy, arrest, police custody and pre-trial detention, legal proceedings, extradition and compensation of victims. The document strikes a balance between the obligation of states to protect their citizens on the one hand and the obligation to comply with human rights in counter-terrorism activities on the other. The text also makes direct reference to the extensive case-law of the European Court on issues such as due process and compensation. Other instruments intended to combat terrorism include the European Convention on Extradition (1957), the European Convention on Mutual Assistance in Criminal Matters (1959) the Convention on Cybercrime (2001) and the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (2005).
An instrument worth special mention is the Convention on the Prevention of Terrorism (2005). The purpose of the Convention is to enhance efforts in preventing terrorism and its negative effects on the full enjoyment of human rights, in particular the right to life, both by measures to be taken at national level and through international co-operation. The Convention contains several provisions concerning the protection of human rights and fundamental freedoms, both in respect of internal and international co-operation on the one hand and as an integral part of new criminalisation provisions (in the form of conditions and safeguards) and the situation of victims on the other hand. The drafters considered this a crucial aspect of the Convention, given that it deals with issues which are on the border between the legitimate exercise of freedoms, such as freedom of expression and association or religion, and criminal behaviour. The Convention does not define new terrorist offences in addition to those included in the existing Conventions. However, it creates three new offences which may lead to the terrorist offences as defined in those Conventions: public provocation to commit a terrorist offence, recruitment for terrorism and training for terrorism. They are coupled with a provision on accessory (ancillary) offences (Article 9) providing for the criminalisation of complicity (such as aiding and abetting) in the commission of the three aforementioned offences and, in addition, of attempts to commit an offence under Articles 6 and 7 (recruitment and training). Safeguards are provided with respect to extradition and mutual legal assistance that make clear that the Convention does not derogate from important traditional grounds for refusal, for example, refusal of extradition where the person will be subjected to torture or to inhuman or degrading treatment or punishment, or to the death penalty.
The European Court has dealt with several cases concerning counter-terrorism, e.g. the treatment of IRA terror-suspects in the UK, Chechens in Russia and members of the PKK in Turkey. Recent cases brought in the context of the ‘war on terror’ include A. and Others v. The United Kingdom where the Grand Chamber ruled that the detention of 11 terrorist suspects under the UK Anti-terrorism, Crime and Security Act was a violation of the right to liberty and security, the right to a judicial review of the detention and the right to compensation. The Court also found that the derogation of the United Kingdom from ensuring the right to liberty and security had been disproportionate as the detention measures were aimed only at non-nationals. Saadi v. Italy concerned the decision of the authorities to deport a Tunisian national lawfully residing in Italy, to Tunisia. Saadi had been convicted in Tunisia of terrorism-related offenses sentenced to 20 years of imprisonment. The Court firmly reasserted the absolute nature of the prohibition of torture and non-refoulement - also when the individual might pose a threat to the hosting state. In Ben Khemais v. Italy the Court held that the deportation of the applicant to Tunisia violated the prohibition of torture and ill-treatment and was unlawful, in defiance of the Court’s interim measures. A Tunisian military court had sentenced the applicant in absentia to ten years in prison for membership of a terrorist group. The Court rejected the reliance on Tunisian diplomatic assurances by the Italian government (see also, e.g.,Ismoilov and Others v. Russia).
The Court of Justice of the European Communities has also dealt with issues concerning counter-terrorism and human rights. For instance, in September 2008 it overturned a decision of the Court of First Instance by annulling a Council regulation that froze the funds of the claimants because it infringed their rights to property, to defence and to an effective remedy. The Court also held that it had competence to review acts implementing UN Security Council resolutions under Chapter VII for full compliance with fundamental rights, not limited to rights of ius cogens (Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission).
Under the auspices of the OAS, the Inter-American Commission has adopted a number of recommendations on terrorism and human rights. On 12 December 2001, the Commission adopted a resolution referring to the use of military tribunals. The Commission stated, inter alia, that
According to the doctrine of the IACHR, military courts may not try civilians, except when no civilian courts exist or where trial by such courts is materially impossible. Even under such circumstances, the IACHR has pointed out that the trial must respect the minimum guarantees established under international law, which include non-discrimination between citizens and others who find themselves under the jurisdiction of a State, an impartial judge, the right to be assisted by freely-chosen counsel, and access by defendants to evidence brought against them together with the opportunity to contest it.
To strengthen counter-terrorism measures in the Americas, the Inter-American Convention Against Terrorism was adopted in 2002. According to Article 15 (paragraph 2)
Nothing in this Convention shall be interpreted as affecting other rights and obligations of states and individuals under international law, in particular the Charter of the United Nations, the Charter of the Organization of American States, international humanitarian law, international human rights law, and international refugee law.
In March 2007 the OAS adopted the ‘Declaration of Panama on the Protection of Critical Infrastructure in the Hemisphere in the Face of Terrorism’. The declaration underscores the need to improve the co-ordination and exchange of information between the member states with a view to preventing, mitigating and deterring threats to critical infrastructure and harmonising, as appropriate, national and regional efforts.
The OSCE has appointed an Anti-Terrorism Co-ordinator with the main goal to ensure that anti-terrorism measures taken by participating states fully comply with OSCE commitments and international human rights law. The EU has also appointed an Anti-Terrorism Co-ordinator to present proposals aimed at better organising and streamlining the work of the EU secretariat in the fight against terrorism, to prepare proposals for better co-ordination among specialist EU councils and to maintain regular contacts with member states to ensure the best co-ordination between EU and national action on terrorism. In February 2009 the EU Parliament adopted a resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners. The Parliament denounced the lack of action by Member States and the European Council to investigate the EU states’ responsibility in connection with the US-led extraordinary renditions programme. The Parliament called on Member States and EU institutions to conduct thorough investigations and to collaborate with them by disclosing information and ensuring effective parliamentary scrutiny of secret services (P6_TA(2009)0073).
In the African context, the Convention on the Prevention and Combating of Terrorism was adopted in 1999 and entered into force in 2002. An Additional Protocol to this Convention establishing a mechanism for combating terrorism was adopted in 2004.
The initial widespread support for far-reaching counter-terror measures has diminished markedly in many countries as grave human rights violations, such as extrajudicial renditions, unlawful and indefinite detention and torture, committed in the name of security, are coming to light. The general public, as well as the courts in Europe, the United States and other regions, are increasingly pressing governments to respect human rights in combating terrorism. These developments give rise to hope that human rights will be duly respected in future efforts to combat terrorism.